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BAR > Evidence > Flashcards

Evidence Flashcards

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1
Q

Lay witness

A
  • Anyone can be a witness
  • Testify as to knowledge/perception (not legal conclusions)
  • Must take oath/affirmation
  • Judge/juror may not be a witness
    Child - yes if can tell truth from lie regardless of age
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2
Q

Expert witness

A
  • Lay foundation/qualify the expert
  • Can use outside evidence
  • Can give opinion on conclusion
    Crim case: CANNOT give opinion on mental state of defendant if element of crime
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3
Q

Control of witness

A
  • The court can take steps to keep “reasonable control”
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4
Q

Leading questions

A
  • Not allowed on direct
  • Exceptions:
    • Cross
    • Hostile witness
    • Adverse party
    • Shy witness/child
    • Jog memory
      Lay foundation
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5
Q

Refreshing memory/recollection

A
  • May show anything to witness
    But not read into evidence
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6
Q

Witness must not be present in courtroom except

A
  • If they are a party
  • Statute allows
    Needed
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7
Q

Judge vs jury roles

A
  • Judge: rules of law + admissibility
    Jury: questions of fact + weight of evidence
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8
Q

Objections and offers of proof

A
  • Objection to admission
    • Timely
    • Grounds for objection
  • Offer of proof (of why it should come in)
    • Evidence was excluded
      Preserves for appeal
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9
Q

Burden of production and persuasion

A
  • Burden to produce evidence: Plaintiff/prosecution must prove each element of crime or claim
  • Next - Burden of persuasion:
    • Civil: preponderance of evidence (51%+)
    • Criminal: beyond a reasonable doubt
      Defendant has burden to prove defense
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10
Q

Presumption

A
  • Conclusion the judge must come to once a party meets its burden.
  • rebuttable presumption
    • If the presumption is rebutted with evidence - the jury MAY conclude
    • If the presumption is NOT rebutted – the jury MUST conclude
      Conclusive presumption: no rebuttal evidence may be offered
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11
Q

Impeachment

A
  • Attacking witness “credibility”
  • Generally admissible
  • Character = defendant VS
    Impeachment = WITNESS on the stand
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12
Q

Impeachment - Prior felony convictions

A
  • Felony within 10 years
    Passes balancing test
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13
Q

Impeachment - Prior convictions regarding honesty/truthfulness

A
  • Felony or misdemeanor
    Proved by reputation, opinion, or acts
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14
Q

Impeachment - Prior bad acts (not convictions)

A
  • In general - inadmissible
  • Regarding honesty/truthfulness - admissible
    No extrinsic evidence
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15
Q

Impeachment - Collateral matter

A
  • Not relevant to the case
    Cannot be used to impeach
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16
Q

Impeachment AND substantive evidence

A
  • When the statement is also not hearsay
17
Q

Relevant evidence

A
  • Any tendency to make a fact more or less probable
  • Generally admissible
  • Excluded if:
    • Unfairly prejudicial (lie detector test)
    • Misleads or confuses the jury
      Causes delay
18
Q

Authentication

A
  • Must show “the evidence is what it purports to be”
  • How:
    • Direct testimony
    • special markings
      Testimony with PERSONAL KNOWLEDGE
19
Q

Self-authenticating

A
  • Look for an official/notarized document
  • Does NOT require additional testimony
    Ex: newspaper, seal, notarized
20
Q

Character evidence

A
  • Bad things the DEFENDANT did in the past
  • NOT admissible
    Too prejudicial
21
Q

Character evidence in CIVIL cases

A
  • When character at issue:
    • Defamation/libel/slander
    • Child custody
    • Negligent entrustment/hiring
    • Misrepresentation/fraud
      Proven by reputation, opinion, and specific acts
22
Q

Character evidence exceptions (admissible)

A
  • Admissible if MIMIC
    • Motive
    • Intent
    • Mistake (absence of)
    • Identification
    • Common plan or scheme (specific)
  • Self-defense claim
    • D CAN show P was initial aggressor
  • Prior acts of child molestation
    • Other instances of child molestation are ADMISSIBLE
  • Habit evidence
    • Routine Practice
      Admissible if habit is done all the time. Particular conduct in a general set of circumstances.
23
Q

Character evidence in CRIMINAL cases

A
  • D OPENS THE DOOR
  • D introduces evidence of pertinent trait
    Prosecution can rebut evidence of same trait
24
Q

Attorney/client privilege

A
  • There must be a RELANTIONSHIP
  • Applies to ANYONE who works for the attorney
  • Lasts FORVER
  • Communication must be CONFIDENTIAL
  • Client holds the privilege. Attorney can claim for client.
    • Waived voluntarily
  • Work product: Generally protected by A/C privilege
  • Exceptions:
    • Getting advice on how to commit a crime
      Dispute between A and C
25
Q

Doctor patient privilege

A
  • Statements about treatment or diagnosis
  • Others can be present if to assist doctor/patient
  • Exceptions:
    • Patient puts his condition at issue
      Dispute between doctor and patient
26
Q

Spousal communication privilege

A
  • Protects confidential information disclosed during marriage
  • Applies:
    • Civil or criminal
    • Survives divorce
    • Either spouse may exert privilege
    • Both spouses must waive
  • Exceptions:
    • Statements about future crimes
      Statements about child/spousal abuse
27
Q

Spousal testimonial privilege

A
  • Prevents a spouse from testifying
  • CRIMINAL case only
  • Must be legally married at trial
  • Covers events before/during marriage
  • ENDS with divorce
  • Witness-spouse holds privilege
  • Exceptions:
    • Statements about future crimes
      Statements about child/spousal abuse
28
Q

Judicial notice (when, law, jury instruction)

A
  • Any evidence not subject to dispute
  • No opinions
  • Ex: day of the week, it is sunny outside. Not: weather forecast for tomorrow
  • Judge MAY - whether requested or not
  • Judge MUST - if requested by a party
  • MUST - federal or state law
  • MAY - foreign law or municipal ordinance
  • Jury instructions for judicial notice
    • Civil case: jury MUST accept as conclusive
      Criminal case: jury MAY accept as conclusive
29
Q

Subsequent remedial measures

A
  • Evidence that something was fixed after an accident
  • NOT ADMISSIBLE to show negligence
  • Public policy rule
    Exception: admissible to show ownership/control
30
Q

Liability insurance

A
  • NOT admissible to show negligence
    MAY be admissible to show bias
31
Q

Offer to compromise/settle

A
  • NOT admissible for public policy
  • Must be a dispute between parties
    Offer to compromise + admission = the WHOLE statement is NOT admissible
32
Q

Offer to pay medical expenses

A
  • NOT admissible
    Offer to pay med expenses + admission: only the ADMISSION is admissible
33
Q

Plea negotiations

A
  • NOT admissible
  • ADMISSIBLE with an admissible statement + FAIR
    Ex: no contest, guilty plea later withdrawn, any statement about guilty plea
34
Q

Past sexual conduct of victim

A
  • NOT admissible to show other sexual behavior or predisposition
  • Exception:
    • In CRIMINAL case
      ○ Shows consent
      ○ Protects D’s constitutional rights
      ○ The source of any physical evidence
      In a CIVIL case: ONLY if the probative value outweighs the prejudicial effect (reverse 403)
35
Q

writing/records/photos

Best Evidence (original document) rule

A
  • The best evidence is considered the original
  • Does not apply to objects
  • Exception: if og item is lost or destroyed, you may use a copy if it is authenticated
  • Authentic: no evidence of tampering (facts will tell); start with the premise the document is authentic
  • Ex: copy of K or deed from courthouse; Not: deed with sharpie marks
    Best evidence rule applies in
    1. To prove the contents of the document. Ex: warranty deed, employment K
      To prove the testimony being given. Exception: if other evidence can prove testimony (facts will tell you)
36
Q

writing/records/photos

Completeness rule

A

When admitting a portion, the whole document may be admitted for fairness (other party may request)

37
Q

Right to confrontation

A
  • Right to confront a witness concerning an out-of-court statement depends on if the statement is TESTIMONIAL
  • Non-testimonial definition: statements made to police during an emergency – admissible
  • Testimonial definition: statement not made during an emergency – not admissible
    Physical and demonstrative evidence
  • Generally admissible
  • Ex: show scar, demonstrate limp
    Hearsay upon hearsay
  • Two different statements
    Not admissible unless both meet an exception or exemption to the rule

BAR (19 decks)

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